President Biden is finalizing plans to endorse major changes to the Supreme Court in the coming weeks, including proposals for legislation to establish term limits for the justices and an enforceable ethics code, according to two people briefed on the plans.
He is also weighing whether to call for a constitutional amendment to eliminate broad immunity for presidents and other constitutional officeholders, the people said, speaking on the condition of anonymity to discuss private deliberations.
The announcement would mark a major shift for Biden, a former chair of the Senate Judiciary Committee, who has long resisted calls to make substantive changes to the high court. The potential changes come in response to growing outrage among his supporters about recent ethics scandals surrounding Justice Clarence Thomas and decisions by the new court majority that have changed legal precedent on issues including abortion and federal regulatory powers.
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Biden previewed the shift in a Zoom call Saturday with the Congressional Progressive Caucus.
“I’m going to need your help on the Supreme Court, because I’m about to come out — I don’t want to prematurely announce it — but I’m about to come out with a major initiative on limiting the court. … I’ve been working with constitutional scholars for the last three months, and I need some help,” Biden said, according to a transcript of the call obtained by The Washington Post.
Term limits and an ethics code would be subject to congressional approval, which would face long odds in the Republican-controlled House and a slim Democratic majority in the Senate. Under current rules, passage in the Senate would require 60 votes. A constitutional amendment requires even more hurdles, including two-thirds support of both chambers, or by a convention of two-thirds of the states, and then approval by three-fourths of state legislatures.
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The details of Biden’s considered policies have not been disclosed. A White House spokesperson declined to comment.
Shortly after The Post published this story, former president Donald Trump criticized the move on Truth Social: “The Democrats are attempting to interfere in the Presidential Election, and destroy our Justice System, by attacking their Political Opponent, ME, and our Honorable Supreme Court,” he wrote. “We have to fight for our Fair and Independent Courts, and protect our Country.”
Biden’s private remarks about his high-court plans came more than two weeks after his wobbly performance at a June 27 debate with Trump, which prompted calls from some Democrats for him to step aside as the party’s presidential nominee. Among those who have rallied to his side are many liberals who strongly support calls to remake the court.
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Four days after that debate, the Supreme Court ruled that Trump was immune from prosecution for official acts during his first term in office. Less than an hour later, Biden called Laurence Tribe, a constitutional law professor at Harvard Law School, to discuss the ruling and the arguments for and against remaking the court.
“This decision today has continued the court’s attack in recent years on a wide range of long-established legal principles in our nation, from gutting voting rights and civil rights to taking away a woman’s right to choose, to today’s decision that undermines the rule of law of this nation,” Biden said in public remarks later that day.
The next week, Biden called Tribe again, and the two discussed a Guardian opinion piece he wrote endorsing reforms to the Supreme Court. Among the options they discussed: term limits, an enforceable ethics code and the constitutional amendment to address presidential immunity.
Tribe confirmed that he spoke with Biden but declined to comment on their discussion.
During the 2020 presidential race, Biden rebuffed calls from liberals who advocated expanding the court, but he promised he would create a commission to study potential changes. He followed through on that promise after being elected, and the commission issued a 294-page report to the president. Biden has not acted on the commission’s report since it was approved in December 2021.
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Approval ratings of the Supreme Court have dropped precipitously in recent years, and Biden finds himself trying to resuscitate a flagging presidential campaign after the politically disastrous debate.
End of carouselSince he was elected, the Supreme Court has veered sharply to the right — overturning Roe v. Wade, ending affirmative action in college admissions, weakening federal agencies’ power by overturning a 40-year decision and striking down Biden’s student-loan forgiveness program. Biden condemned the court’s recent ruling on presidential immunity, arguing on July 1 that it should motivate Americans to vote for his reelection.
“Each of us is equal before the law. No one — no one is above the law, not even the president of the United States,” Biden said in a White House address. “With today’s Supreme Court decision on presidential immunity, that fundamentally changed.”
Eight Democratic senators have co-sponsored a bill that would establish 18-year terms for Supreme Court justices, with a new justice appointed every two years. The nine most recently appointed justices would sit for appellate jurisdiction cases, while others would be able to hear original jurisdiction cases or to step in as a substitute if one of the most recent nine is conflicted or cannot hear a case for another reason.
The legislation was introduced by Sen. Sheldon Whitehouse (D-R.I.), but it has been co-sponsored by several Democrats: Cory Booker (N.J.), Richard Blumenthal (Conn.), Alex Padilla (Calif.), Jeff Merkley (Ore.), Peter Welch (Vt.), Brian Schatz (Hawaii) and Kirsten Gillibrand (N.Y.).
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Democrats have offered other legislation to deal with ethics concerns about the high court, including a bill by Sen. Elizabeth Warren (D-Mass.) and Rep. Pramila Jayapal (D-Wash.) that caps gifts judges can receive, requires the court to follow the judicial code of conduct and requires justices to provide written recusal decisions upon request from litigants, among other changes.
Ann E. Marimow contributed to this report.
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